1701597 (Migration)

The Administrative Appeals Tribunal considered whether to set aside a decision to cancel the visa of a Burmese citizen who held a Higher Education Sector (subclass 573) visa. The applicant's visa was cancelled on the grounds that he had not been enrolled in a registered course of study since 21 July 2015, thereby breaching condition 8202(2)(a) of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether the applicant had complied with condition 8202 of Schedule 8 to the Migration Regulations 1994, which requires a student visa holder to be enrolled in a registered course, achieve satisfactory course progress, and maintain satisfactory course attendance. If a breach was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 116(1) of the Migration Act 1958.

The Tribunal found that the applicant had indeed failed to comply with condition 8202(2)(a) as he was not enrolled in a registered course at the time of the cancellation notice. However, in considering the exercise of discretion, the Tribunal had regard to several factors. These included the applicant's initial intention to study in Australia, his present intention to continue studying, and the significant hardship he would face if his visa were cancelled, including potential harm from his family in Burma due to his same-sex relationship in Australia, and limited future visa options. The Tribunal also noted that the applicant had made protection claims that could be considered in an alternate visa process.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 573 Higher Education Sector visa.